May 202013

sean - 150x150LIMA – There is a strong sense in the halls of the current TPP negotiation that the end is not in sight. And one of the primary reasons for the blocked progress is a lack of consensus on intellectual property and pharmaceuticals issues.

Officially, the Chief Negotiators have backed off the prior commitment to end the TPP negotiation by October, but are still clinging to a goal to end the negotiation by the “end of the year.” But it is increasingly clear that even that goal is not achievable. The issues still under contention are massive.

The intellectual property chapter is rumored to be over 80 pages of text – including all the bracketed suggestions and alternatives. Some describe it as the longest text currently under negotiation.

Many of the issues are completely blocked. It does not apear that there has been any new negotiation text offered on the most controversial pharmaceutical provisions since the Melbourne round over a year ago. Nor does it appear that many countries have a mandate to negotiate (they only “consult” and “discuss”) the pharmaceutical reimbursement chapter. Barbara Weisel described the pharmaceutical issues as being in a “period of reflection,” and had no comment on when that period might end.

The internet issues are almost completely bracketed, with no consensus from the countries without FTAs with the United States that TRIPS plus issues on anti-circumvention liability and other hot button issues should be included at all, much less how they should be worded.

The recent spate of proposals for policy changes for US copyright law have caused a stir. The US is being asked by stakeholders how it can hold on to demands for parallel importation restrictions after the Kirtsaeng ruling, 70 year copyright terms after the Copyright Office proposed shifting them back to 50 years with formalities required for extensions, and strict restrictions on anti-circumvention liability exceptions when the Obama Administration and the Library of Congress have endorsed reforms that would violate the US proposal. In response to some of these questions, Barbara Weisel stated that USTR is “doing what we can to work with Congress” to make sure that the TPP will not restrict policy options.

And there is no plan to release any text to the public. This is stark contrast to the last to plurilateral agreements including countries in the region. The Free Trade Area for the Americas and the Anti-Counterfeiting Trade Agreement both released full texts of the negotiating document with brackets indicating text under consideration before the finalization of the texts. For ACTA, there were four publicly released texts between April 2010 and May 2011. For the TPP – none yet, despite the Chief Negotiators’ pronouncement of end of year finalization plans.